Regular-use exclusion bars recovery even with disparate households.

• Author: Ziemer, David

Byline: David Ziemer

An insurance policy's regular-use exclusion bars coverage where an insured is driving his father's car and the car is available for regular use even though the insured and his father are not members of the same household, the Wisconsin Court of Appeals held last week.

Facts:

Karen Martin was injured in an automobile accident with Eric Johnsen while Johnsen was driving a pickup truck owned by his father, Henry. The son did not live with his father, but he used the truck regularly.

Eric also owned a vehicle of his own, a 1983 van. Both the son and his father insured their respective vehicles with American Family Insurance.

Eric's policy provided that coverage does not apply to: "Bodily injury or property damage arising out of the use of any vehicle, other than your insured car, which is owned by or furnished or available for regular use by you or any resident of your household."

Procedure:

Martin, the injured party, brought suit against Eric, Henry and American Family seeking coverage under both policies.

American Family tendered the $150,000 policy limits under Henry's policy.

Milwaukee County Circuit Court Judge Victor Manian then dismissed the remaining $100,000 claim against American Family (based on the son's policy), concluding that coverage was excluded by the drive-other-car exclusion.

Martin appealed, and the District I (Milwaukee) Court of Appeals affirmed in a decision by Judge Ralph Adam Fine, joined in by Judge Patricia S. Curley.

Judge Charles B. Schudson dissented.

The court's reasoning:

The court rejected Martin's claim that the exclusion is prohibited by sec. 631.43(1), which provides:

When 2 or more policies promise to indemnify an insured against the same loss, no other insurance' provisions of the policy may reduce the aggregate protection of the insured . . .

The court concluded that the statute was inapplicable because Eric's policy and Henry's policy did not promise to indemnify Eric against the same loss.

The court reasoned:

"Eric Johnsen's . . . policy promised to indemnify him for liability resulting from his driving the 1983 van and those cars that were not available for his regular use.

"That risk of loss excluding, as it did, coverage for his driving his father's pickup truck was different than the risk of loss covered by his father's policy on the truck, which promised to provide liability coverage for accidents caused by an authorized driver of the pickup truck."

The court distinguished...